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ELCDismissedMemorandum of Appeal dated 18/07/2024 (from trial suit over Matungulu/Kyaume/2100)· [2025] KEELC 8467 (KLR)

Kimeu & 3 others v Kiio (Environment and Land Appeal E035 of 2024) [2025] KEELC 8467 (KLR)

High Court of Kenya
2 December 2025
2,633 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the High Court at Machakos (A. Y. Koross, J) against a magistrate's judgment of 24/06/2024 in which the respondent, registered owner of Matungulu/Kyaume/2100, obtained eviction of the appellants (her brothers-in-law and their children) and a permanent injunction. The appellants' defence was that the suit property was a subdivision of an 'original land' on which they and their families had been settled, and that the respondent obtained her title through a corrupt scheme. On appeal they consolidated their grounds into a single complaint that the trial magistrate failed to consider the weight of evidence. The court first disposed of a preliminary issue: although the term 'customary trust' was not explicitly pleaded, the issue of lawful occupation had been raised in the defence, so the new point on appeal was properly before the court. Applying Selle v Association Motor Boat Co., the court re-evaluated the evidence. It held the claim before the trial court was trespass, since the corruption allegation was unspecified and no counterclaim was filed. The respondent's paper title sufficed, while the appellants produced no green cards, mutation form or registry index map for their claims. Crucially, the occupation issue had already been determined against the appellants or their predecessors by the Minister in Land Appeal Case No. 193 of 1981 under the Land Adjudication Act, whose process forecloses re-litigation. The appeal was dismissed, the trial judgment upheld, and, because the parties are close relatives, each party was ordered to bear their own costs of the appeal.

Key legal issues

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01

Introduction of a new ground of appeal (customary trust)

Holding

The customary trust issue had been raised before the trial court through the defence and was properly before the appellate court

Reasoning

The respondent objected that parties cannot introduce new matters on appeal. The court concurred with the principle but found that although 'customary trust' was not explicitly pleaded, paragraphs 4, 7, 9 and 10 of the defence raised the issue of lawful occupation based on settlement of the parties on specific parcels, making it a matter for determination at trial.

p. 2
02

Whether the respondent proved trespass against the appellants

Holding

Yes. The respondent was the registered owner with paper title and the appellants, having failed to prove their claims of settlement and corrupt acquisition, were unjustifiably occupying the suit property and were trespassers

Reasoning

The respondent pleaded trespass and produced her title deed. The appellants alleged the title was obtained through a corrupt scheme but neither specified the allegation nor filed a counterclaim, and produced no green cards, mutation form or RIM to support their claim of allocation. The Minister's 1985 decision had already determined ownership of the suit property against the appellants or their predecessors.

p. 5
03

Whether the appellants could re-litigate occupation determined under the Land Adjudication Act

Holding

No. The issue of the suit property had been litigated and decided by the Minister in Land Appeal Case No. 193 of 1981, and the claim of customary trust was equally foreclosed

Reasoning

The suit property was created through land adjudication, whose Act provides a grievance process ending with the Minister, with court access only in exceptional cases under Section 30. The Minister dismissed the appeal on 29/11/1985 and directed the district surveyor to inspect the property. The same parties or their predecessors could not re-litigate lawful occupation, nor hide behind customary trust already determined.

p. 5
04

Role of a first appellate court

Holding

The court is empowered under Section 78 of the Civil Procedure Act to re-evaluate and reconsider the entirety of the evidence and draw its own conclusions

Reasoning

As a first appeal, the court exercises the powers under Section 78 of the Civil Procedure Act, guided by Selle & Another v Association Motor Boat Co. Ltd, to reconsider the evidence, evaluate it itself and draw its own conclusions, while bearing in mind it neither saw nor heard the witnesses.

p. 3

Legal principles established

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  • A new point not pleaded or canvassed at trial should not be taken on appeal unless the trial evidence, if fully investigated, would support it
  • On a first appeal the court re-evaluates the entire evidence and draws its own conclusions while making allowance for not having seen or heard the witnesses
  • Trespass to land is any unjustifiable intrusion upon land in the possession of another, and possession, not ownership, is the basis of the action
  • Grievances arising from land adjudication must be pursued through the mechanism of the Land Adjudication Act up to the Minister, and courts will not re-open decided adjudication matters except by judicial review or a new cause of action

Court orders

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  1. 1.Appeal dismissed
  2. 2.Orders issued in the judgment of 24/06/2024 (eviction, permanent injunction and costs in the respondent's favour) upheld
  3. 3.Each party to bear their respective costs of the appeal

Authorities

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Legislation

  • Civil Procedure ActSection 78
  • Civil Procedure ActOrder 2 Rule 10 (1) (a)
  • Land Adjudication ActSections 20, 21, 22, 26, 29(1) and (2), 30
  • Land ActSection 6
  • Land Registration ActSection 6
  • Registered Land Act (repealed)Section 6

Cases cited (6)

  • Kenya Hotels Limited v Oriental Commercial Bank Limited
    [2018] KECA 692 (KLR)
  • Selle & Another v Association Motor Boat Co. Ltd & others
    (1968) EA 123
  • Abdul Hameed Saif v Ali Mohamed Sholani
    (1955) 22 EACA 270
  • Timsales Ltd v Wilson Libuywa
    [2008] Kehc 460 (KLR)
  • Dume Deri Mumbo & 19 others (suing on their behalf and on behalf of Wandarari Clan) v Cabinet Secretary of Lands, Housing & Urban Development & 6 others
    [2016] eKLR
  • Kimeu Muindi and Kithuu Muindi v Mrs Mukui Kiio and Bernard Mutuku Nzimba
    Minister's Land Appeal Case No. 193 of 1981
On appeal from
Magistrates' Court (trial court)
Suit instituted by plaint dated 22/08/2018
Jurisdiction invoked
First appeal under Section 78 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kimeu & 3 others v Kiio (Environment and Land Appeal E035 of 2024) [2025] KEELC 8467 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 18/07/2024 (from trial suit over Matungulu/Kyaume/2100). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8467/eng@2025-12-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.